BLEVINS & BLEVINS
[2019] FCCA 1923
•11 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLEVINS & BLEVINS | [2019] FCCA 1923 |
| Catchwords: FAMILY LAW – Spouse Maintenance – whether or not leave is required pursuant to s.44(3) of the Family Law Act 1975 (Cth) to institute spousal maintenance proceedings – leave not required. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 80, 81, 83 |
| Cases cited: Atkins & Hunt [2016] FamCAFC 230 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Caska v Caska [2001] FamCA 1279 Emerald & Emerald [2017] FamCA 798 Lambton & Lambton (No.2) [2017] FamCAFC 230 Sharp & Sharp [2011] FamCAFC 150 |
| Applicant: | MS BLEVINS |
| Respondent: | MR BLEVINS |
| File Number: | HBC 69 of 2009 |
| Judgment of: | Judge Baker |
| Hearing date: | 1 July 2019 |
| Date of Last Submission: | 1 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Murdoch Clarke |
| Counsel for the Respondent: | Mr Lewinski |
| Solicitors for the Respondent: | Butler Mcintyre & Butler |
ORDERS
The Application in a Case filed 15 May 2019 be dismissed.
The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Hobart Registry on 6 August 2019 at 2:00pm.
That the parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the Court, at least 7 days before the conciliation conference, copies of:
(a)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;
(b)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(c)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
That in the event that the matter does not settle at the conference and the parties have not complied with orders (no.3) (a) to (c), the Registrar is directed to contact the chambers of Judge Baker in order to urgently list the matter before Judge Baker for further directions and submissions with respect to costs.
The matter be adjourned to a date to be fixed after the Conciliation Conference for final hearing (“the hearing date”).
Unless the Court otherwise grants leave the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.
The Applicant and Respondent be granted leave to file an affidavit in respect of any matters arising since the filing of their trial affidavit.
The Applicant make, file and serve an updated Financial Statement any affidavit material upon which she intends to rely no later than 21 days prior to the hearing date.
The Respondent make, file and serve an updated Financial Statement any affidavit material upon which he intends to rely no later than 14 days prior to the hearing date.
Each party make, file and serve no later than 3 days prior to the hearing date a case outline setting out:
PROPERTY a. A list of the material relied upon.
b. A brief chronology, listing significant events;
c. A table, listing all of the assets, liabilities and financial resources claimed to be part of the pool of assets, with the values contended for by each party;
d. Main contentions on disputes as to:
i. Inclusions in the pool of assets;
ii. Values of assets;
e. A list of contributions claimed or contended for;
f. A list of other factors relied upon (s.75(2) factors) and percentage adjustment contended for;
g. Other relevant contentions to determining a “just and equitable” division of property; and
h. The actual orders sought.
In the event of any applicable filing, setting down, hearing, mediation or enforcement fee or fees (“the fees”), the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.
The costs of the Applicant be reserved.
THE COURT NOTES THAT:
A.The parties are expected to comply with the trial directions made today regardless of whether they have secured legal aid funding.
B.In the event that any party does not comply with the orders, directions, Rules or Regulations of this Court relating to the filing of documents the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules or Regulations.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
IT IS NOTED that publication of this judgment under the pseudonym Blevins & Blevins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 69 of 2009
| MS BLEVINS |
Applicant
And
| MR BLEVINS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 March 2019, the applicant filed an initiating application in which she sought an order:
1. That the respondent pay spouse maintenance in the sum of $400 per week, commencing 4 January 2019.
On 15 May 2019, the applicant filed an application in a case seeking an order:
1. THAT in the event that the court determines that the applicant wife is required to seek leave pursuant to Section 44 of the Family Law Act to institute proceedings for spouse maintenance then the applicant be and is hereby granted leave.
The respondent filed a response on 17 June 2019, in which he sought an order that the initiating application be dismissed. He also sought an interim order that leave not be granted to the applicant to institute proceedings for spouse maintenance.
The application is made 23 years after the parties separated, and after a property settlement order and an order in favour of the applicant for periodic spouse maintenance of $750 per month, payable for 10 years, was made in 1999; and a lump sum spouse maintenance order in favour of the applicant for $275,000 was made in 2009.
Background
The applicant is 69 years old and the respondent is 71 years old.
The parties married on … 1970 and separated in January 1996. They have two adult children and two grandchildren. The respondent has remarried.
The parties were divorced in 1998. The decree (now order for divorce) was made absolute (now final) was made on 21 May 1998.
The Evidence
The applicant relied on two affidavits filed 6 March 2019 and 15 May 2019, and a financial statement filed 6 March 2019. The respondent relied on an affidavit filed 17 June 2019 and a financial statement filed 17 June 2019.
The applicant in her first affidavit deposed that, “…at the time of our divorce I had no income and was dependent upon spouse maintenance which I understand the respondent paid to me using a family trust.” In her subsequent affidavit, she deposed that at the time of her divorce:
I had no income from employment and was unable to support myself without the benefit of an income tested pension, allowance or benefit in the form of a Centrelink pension. My circumstances were the same in April 1999.
An application for property and spouse maintenance was filed on 24 August 1998. A final order was made in the Family Court of Australia on 8 July 1999, which provided inter alia, that the respondent pay spouse maintenance to the applicant of $750 per month, commencing on 8 July 1999 and concluding on 8 July 2009, “…and thereafter the wife shall be at liberty to seek the payment of further spousal maintenance pursuant to the Family Law Act 1975 as amended.”
The applicant deposed that, “…in 2009…she was unable to support herself without continued spouse maintenance.” As a result, on 12 May 2009, a further order was made that the respondent pay her lump sum spouse maintenance in the sum of $275,000. She received this sum on or about 9 July 2009. Order 6 of that same order provided that this is an order to which s.77A of the Family Law Act 1975 (‘the Act’) applies and the entirety of the final payment is attributable to the provision of spousal maintenance for the former wife. There was a notation that:
…these orders pursuant to section 81 of the Family Law Act 1975 (as amended) shall finally determine any obligation by the former husband to provide spouse maintenance to the former wife.
The applicant deposed that, “…in 2009, the Centrelink benefit which I was dependent upon was a disability support pension.” On 5 June 2014, the applicant attained 65 years of age and she deposed that she was required to move to an aged pension with a different assets test. Later the assets test for the aged pension was changed to take into account superannuation, and as a result she lost all pension income from January 2017. She deposed that she is entirely reliant upon her savings and superannuation, but this does not generate enough income to enable her to meet her reasonable needs.
The respondent deposed that he complied with the order made in 2009 and he believed that would finalise all financial matters between the parties. He annexed to his affidavit a letter dated 16 April 2009 from Mr Foster, solicitor for the applicant, in which he enclosed the consent order and wrote:
In taking that position she [the applicant] is mindful that we have not been given access to up-to-date financial information and also that the proposed orders anticipate that the settlement will be a final one and that your client will not have to contribute further.
The respondent deposed that he would be significantly prejudiced if leave was granted to the applicant to make an application for further spouse maintenance. He is 71 years of age. Property proceedings were finalised between the parties in 1999. He has remarried and a further claim for spouse maintenance is causing significant emotional stress to him and his current wife.
Submissions of the Parties
The Applicant’s Submissions
Counsel for the applicant submitted that the initiating application is a new application for spouse maintenance, and it is not a matter where s.44(3) of the Act closes the door on the claim. It was submitted that the opening of the door was addressed 10 years ago when a spouse maintenance order was made. The court was satisfied that the wife was unable to support herself without an income tested pension, allowance or benefit 10 years prior to that in 1999. The s.44(3) restriction therefore died with the making of the spouse maintenance order in 2009. It was submitted that if the court considers that leave is required, then s.44(4) is relied on, on the basis of hardship.
Counsel for the applicant relied on the Full Court decision of Atkins & Hunt.[1] In that decision, Murphy J said:
As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party”. Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by earlier orders.[2]
[1] [2016] FamCAFC 230.
[2] Ibid, [60].
The decision of Emerald & Emerald[3] was also relied on where the Court said:
Paragraph 44(4)(b) of the Act provides that leave shall not be granted unless the Court is satisfied that, in the case of spousal maintenance, at the time the decree (now order for divorce) became absolute (now final), the circumstances of the applicant were such that she would have been unable to support herself without an income tested pension, allowance or benefit.[4]
[3] [2017] FamCA 798.
[4] Ibid, [5].
It was submitted that the respondent does not dispute that a year after divorce and when orders were made in 1999 and 2009, there was no impediment to the applicant pursuing spouse maintenance. The affidavit evidence describes the hardship that the applicant would endure if she was unable to pursue spouse maintenance now.
It was submitted that in terms of hardship, the history of this matter and the facts that pertain to the year after divorce, as conceded by the husband by his subsequent consent to spouse maintenance orders in 2009, leave is not required. If it is required, it should be granted.
The Respondent’s Submissions
The respondent’s case is that there is no spouse maintenance order in force, as the lump sum spouse maintenance order has been complied with by the respondent. It was submitted that the decision of Caska & Caska[5] is authority for the case that if an order has been complied with and has been perfected, it has ceased to have any further operation. If there is no existing order that is capable of variation, amendment, rescission or the like, there is a requirement for a fresh application.
[5] [2001] FamCA 1279.
It was submitted that the applicant therefore requires leave to commence her application. Counsel for the respondent submitted that the intention of the applicant, as communicated by her solicitor, was to give the respondent finality.
Counsel for the respondent submitted that leave is required because:
a)The wife has had “two goes at this”, by virtue of order made in 1999 and the order varied in 2009. The respondent accepts that it is arguable that that variation of the order could occur in 2009.
b)The 2009 order was made as a final order and this was acknowledged by the parties, and the order was complied with.
It was submitted that it is incumbent on the applicant to give evidence why leave ought to be granted, comprehensive information about her financial position, the prejudice to her, and reasons for the delay. It was submitted that her affidavit filed 15 May 2019, in support of the application for leave to proceed, is deficient in that it does not do any of these things to the requisite standard. There is insufficient evidence that she will suffer hardship.
It was submitted that should leave be granted, there will be obvious hardship to the husband. There will be monetary hardship by virtue of the possibility that payment will be required. He has complied with the 2009 order and is under stress.
In respect of the discretion in relation to granting of leave to proceed, counsel for the respondent cited Brisbane South Regional Health Authority v Taylor.[6] In this decision, McHugh J refers to the discretion to extend time, and the balance between limitation periods and discretion. This decision is referred to in the case of Sharp & Sharp,[7] in which the Full Court held that there is nothing to suggest that McHugh J’s view is not applicable to the s.44 consideration under the Act.
[6] (1996) 186 CLR 541.
[7] [2011] FamCAFC 150.
It was submitted that it is clear that it was intended by the parties that the very significant payments, from 1999 and in 2009, were meant to be final.
In respect of finality of proceedings, s.81 of the Act provides:
81 Duty of court to end financial relations
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Relevant Law
The power to vary a spouse maintenance order is set out in s.83 of the Act, which provides as follows:
83Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court’s jurisdiction under subsection (1) may be exercised:
(a) in any case—in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) …
Is there an order in force?
The form of the initiating application is that a new spouse maintenance order be made. There is no application to vary a previous order under s.83 of the Act. Counsel for the applicant made it clear in his submissions that this is a new application.
Counsel for the respondent submitted that there is no order in force. As indicated, he relied on the Full Court decision of Caska v Caska,[8] in which Justice Lindenmayer, with whom Holden and Watt JJ agreed held:
After considering all these cases, I find it difficult to see how it can be concluded that section 83 (1) empowers the court to vary a lump sum maintenance order which has been fully complied with, and still give any meaning and operation to the words ‘in force’ in that subsection. None of these cases compel that conclusion, and the more persuasive dicta in Collins (supra) is to the contrary.[9]
[8] [2001] FamCA 1279.
[9] Ibid, [81].
I agree with counsel for the respondent that there is no order in force. The respondent paid capitalised spouse maintenance in the sum of $275,000 to the applicant pursuant to the 12 May 2009 order, to which s.77A was specified to apply. The order provided that the payment be made on 9 July 2009. As there was no period specified for how long the maintenance was to last, the period was from the day the applicant received it to the day immediately before she turned 65 in 2014.[10]
[10] See Australian Government, 3.1.7.13 Capitalised Maintenance, Family Assistance Guide (20 September 2016) < and CCH, Australian Family Law & Practice Premium Commentary, ‘Spousal Maintenance and Social Security Entitlements’ [43-570].
The initiating application is therefore incapable of being classified as an application under s.83 of the Act.
Does the applicant need leave under s.44 of the Act?
Section 44(3) provides as follows:
(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a)—the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b)—the date of the making of the decree.
The court may grant such leave at any time, even if the proceedings have already been instituted.
The court has power to grant leave to institute proceedings out of time if the matters in s.44(4) are satisfied.
Section 44(4) provides as follows:
(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:
(a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or
(b) in the case of proceedings in relation to the maintenance of a party to a marriage—that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.
In respect of the respondent’s argument about finality, there is a distinction between the extent of finality offered in relation to spouse maintenance and property settlement.
In the Full Court decision of Atkins & Hunt,[11] Murphy J (with whom Bryant CJ and May J agreed) said:
First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage, nor necessarily when orders are made pursuant to Part VIII of the Act. While the court is required, as far as practicable to effect a “clean break” – to “make such orders as will finally determine the financial relationships between the parties … and avoid further proceedings between them”[12] – the liability for spouse maintenance is that of a “party to the marriage”.[13] The latter expression is defined as including a person who was a party to a marriage now ended by death, divorce or annulment.[14] That new spouse maintenance orders can be made in circumstances where the initial order is properly made within time is entirely consistent with a liability for spousal maintenance persisting despite the formal end of the marriage or other financial orders having been made.
Secondly, no specific reference is made within s 44(3) either to s 83 itself or to any link between the expressions used within s 44(3) and like expressions in s 83. In that regard, it is of significance in my view that the exceptions provided for in respect of settlement of property are made by reference to specific sections whereas the expressions used in respect of maintenance are not. The nature of orders for settlement of property and their “finality” should be contrasted with orders for spousal maintenance which the Act contemplates specifically might be later modified. Despite that important distinction, the words use in s 44(3) are not confined by specific reference to s 83.
Thirdly, the expression “an order previously made” is not defined, confined or restricted in its operation. Fourthly, the expression “revival” is not confined in s 44(3), as it is in s 83, to the situation where an order has been suspended.[15] Finally, the word “revival” is a word of ordinary usage and meaning. It means, for example, “the state of being revived” which is “to become operative or valid again” or “restoration to use, acceptance or currency”[16] or “an instance of something becoming … active or important again”.[17] Thus, s 44(3) can be seen as having in contemplation “an order previously made” becoming “operative or valid again”.[18]
[11] [2016] FamCAFC 230.
[12] The Act, s 81.
[13] The Act, s 72.
[14] The Act, s 4(2).
[15] See ss 83(1)(e) and (d) of the Act.
[16] Macquarie Dictionary.
[17] Oxford Dictionary.
[18] Ibid, [52]–[54].
The Full Court held that the limitation period of 12 months from the date of the divorce order in s.44(3) does not apply to a matter where an order made in “…proceedings with respect to the maintenance of [the wife]” is “an order previously made” for the payment of spouse maintenance. Justice Murphy found that the trial judge’s reference to “the finality principle” as a matter relevant to the exercise of his discretion whether to permit amendment to an initiating application to seek a maintenance order under s.74, was misconceived. At para 60, Murphy J said:
As has been seen, s44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s.74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party.” Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by the earlier section.
This decision has been followed in the decision of Lambton & Lambton (No. 2).[19]
[19] [2017] FamCAFC 230, [66].
The spouse maintenance order made in proceedings with respect to the maintenance of the applicant in 1999, is an order previously made. The order was properly made within time. I consider that the applicant therefore does not need to obtain leave pursuant to s.44(3) of the Act.
This means that potentially the respondent may be required to pay spouse maintenance, if he has the ability to pay and the applicant can demonstrate a need. This will be determined at trial.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 12 July 2019
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